Federal judge rules jury should decide Thevenin case

Family photo Edson Thevenin was shot and killed by a Troy patrol sergeant in 2016.

Will Waldron

Troy police sergeant Randall French enters the Rensselaer County Courthouse on March 20, 2019, in Troy, N.Y. Sgt. French who fatally shot Edson Thevenin during a 2016 DWI traffic stop, is on a ventilator and fighting for his life after being diagnosed with coronavirus. His family is pleading with the public to find recovered COVID-19 patients who could donate anti-body rich plasma to save him. (Will Waldron/Times Union)

Will Waldron/Albany Times UnionMayor Patrick Madden is questioned by the Times Union editorial board about his decision to continue to conceal the review of a scathing internal report into the killing of Edson Thevenin on Thursday, Aug. 29, 2019, at the Times Union in Colonie, N.Y. (Will Waldron/Times Union)

Will Waldron/Albany Times UnionActivists gather outside Troy City Hall to protest the death of Edson Thevenin on Thursday, Sept. 5, 2019, in Troy, N.Y. Thevenin, an unarmed DWI suspect, was fatally shot by Troy police Sgt. Randall French during a traffic stop in 2016. (Will Waldron/Times Union)

OAGTrajectory evidence of bullets hitting the windshild of of Edson Thevenin as part of the Office of Attorney General's investigation of the death of Thevenin.

ALBANY — A civil rights lawsuit filed against the city of Troy and a patrol sergeant who fatally shot an unarmed DWI suspect in 2016 was put on course for trial on Friday when a federal magistrate declined to dismiss the case and ruled that a jury should resolve the "material questions of fact" about what really happened that night.

U.S. Magistrate Daniel J. Stewart, in declining the city's motion to dismiss the case, said conflicting witness accounts raise too many questions about the city's claim that the officer, Sgt. Randall French, was constitutionally authorized to use deadly physical force because "in a moment of existential terror, (he) found himself pinned between his squad car and the still accelerating vehicle of Edson Thevenin."

That split-second decision, the city had argued, was based on French's perception that he was in imminent danger and justified to use deadly physical force.

But Stewart noted that witnesses — including other police officers — have given varying accounts of what unfolded, and a key civilian witness, D. Phillip Gross, sharply contradicted French's claim of being trapped against his patrol car by Thevenin's revving Honda Civic when he opened fire.

"The clearest dispute of fact is presented by witness Phillip Gross’ testimony that he observed Sgt. French get out of his vehicle and, without saying anything and without being pinned, immediately start firing into the Thevenin vehicle," Stewart wrote. "Gross alternatively placed the Thevenin vehicle backing away from French when the shots were fired."

An internal affairs' investigation that had been concealed by Troy city officials also concluded last year that French was not in imminent danger when he fired the first two rounds through Thevenin's windshield.

Michael A. Rose, one of the attorneys representing Thevenin's widow, Cinthia, who filed the federal lawsuit in the wake of her husband's April 2016 death, said Stewart made the correct decision.

"The court correctly determined that multiple witnesses contradicted French's account on that fatal evening," Rose said. "We are confident that a jury will conclude that Sgt. French fabricated his story to justify his improper actions that wrongfully took Edson Thevenin's life."

John D. Aspland, an attorney representing the city of Troy and French in the federal litigation, was traveling Friday and had not read the decision. But Aspland indicated they will appeal, saying that they expect the decision will be reviewed by U.S. Second Circuit Court of Appeals in Manhattan.

Stewart's ruling comes less than a month after he unsealed a once-secret internal affairs report — which the city of Troy had argued was flawed and should remain sealed — that concluded French lied about running French's car off the road and then opened fire without justification.

The report, which recommended disciplinary action against French, was drafted last year by Capt. Joseph L. Centanni at the end of a nine-month internal investigation.

The determination that French had sideswiped Thevenin's Honda sedan and forced it into a concrete barrier — in violation of departmental policies — was made by Brian F. Chase, a former New Hampshire State Police sergeant who is considered an international expert in vehicle forensics. Chase had been hired by the Troy Police Department as part of the internal investigation.

Centanni, who now heads the department's detective bureau, issued his report last fall determining that French gave "empirically untruthful statements" about what happened that night, including his alleged decision to force Thevenin's vehicle off the road.

Troy city police officials declined to take action against French based on Centanni's report, which sustained four allegations against the sergeant, including his having engaged in "several reckless acts which dramatically increased the likelihood of a violent confrontation with Thevenin upon Sgt. French's exit from his patrol vehicle."

Instead, top officials in the administration of Mayor Patrick Madden secretly hired a law enforcement consultant, Michael D. Ranalli, who issued a 19-page legal memorandum that they now say rebutted Centanni's findings.

Madden's administration, facing recent criticism for concealing the internal affairs' probe from the City Council and public, this week allowed council members to review Ranalli's memo behind closed doors. The council members were not allowed to make copies of the document.

Ranalli, a former Glenville police chief and attorney who is considered an expert in police use-of-force incidents, did not examine whether French had forced Thevenin's car off the road prior to the shooting.

A year-long investigation by the state attorney general's office that was completed in January 2018 also had raised questions about French's version of what unfolded, and sharply criticized the investigations conducted by the Troy Police Department and former Rensselaer County District Attorney Joel E. Abelove.

Within days of the fatal shooting, Troy police officials have staunchly supported French's use of deadly force as justifiable, saying that although Edson Thevenin was not armed, they considered his vehicle a deadly weapon. They have not wavered from that position.

Brendan J. Lyons joined the Times Union in 1998 as a crime reporter before being assigned to the investigations team. He became editor of the investigations team in 2013 and joined the Capitol Bureau in 2017.